Citation Nr: 9809639
Decision Date: 03/30/98 Archive Date: 04/14/98
DOCKET NO. 96-12 242 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to an increased rating for a history of
traumatic degenerative arthritis of the right knee with
status postoperative lateral meniscectomy and arthroscopic
debridement and status post March 1993 total right knee
arthroplasty, currently rated as 30 percent disabling.
2. Entitlement to an increased rating for right lower back
spasm, currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
T. L. Douglas, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1950 to
November 1952.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from ratings actions by the Portland,
Oregon, Regional Office (RO) of the Department of Veterans
Affairs (VA).
The record reflects that in September 1988 the RO, inter
alia, granted service connection for right knee degenerative
arthritis, status post lateral meniscectomy, and assigned a
10 percent disability rating.
In September 1993, the RO granted an increased schedular
rating for the right knee disability to 30 percent. In a
July 1995 rating decision the RO continued a 30 percent
disability rating for the right knee disability, and granted
service connection for right lower back spasm as secondary to
the service-connected right knee disability. A 10 percent
disability rating was assigned for the low back disability.
In December 1995, the RO continued a 30 percent disability
rating for the right knee disability. The veteran submitted
a notice of disagreement in January 1996.
In February 1996, the RO continued a 30 percent disability
rating for the right knee disability, and continued a 10
percent disability rating for right low back spasm.
Subsequently, the veteran perfected his appeal as to these
issues.
In a May 1996 rating decision the RO continued the 30 percent
disability rating for the right knee disability, continued a
10 percent disability rating for right low back spasm, and
denied service connection for degenerative joint disease of
the lumbosacral spine, as secondary to a service-connected
disability. The veteran has not submitted a notice of
disagreement as to the denial of service connection for
degenerative joint disease of the lumbosacral spine;
therefore, the issues listed on the title page of this
decision are the only issues presently before the Board on
appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his right knee and low back
disabilities are more severely impaired than indicated by the
present disability evaluations. He claims he experiences
pain and weakness in his right knee and constant back pain
since his total knee replacement, and that his activities are
limited as a result of these disabilities. He argues that
increased ratings are warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against the claim for an increased rating for a
history of traumatic arthritis of the right knee with status
postoperative lateral meniscectomy and arthroscopic
debridement and status post March 1993 total right knee
arthroplasty.
It is the decision of the Board that the record supports a
grant of entitlement to an increased evaluation of 20 percent
for right lower back spasm.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. Medical evidence demonstrates that the veteran’s right
knee disability is manifested by status post right knee
arthroplasty, but without evidence of severe painful motion
or weakness, ankylosis or permanent limited extension of the
right leg.
3. Medical evidence demonstrates that the veteran’s right
lower back spasm is productive of moderate limitation of
motion.
CONCLUSIONS OF LAW
1. The criteria for a rating higher than 30 percent for a
history of traumatic degenerative arthritis of the right knee
with status postoperative lateral meniscectomy and
arthroscopic debridement and status post March 1993 total
right knee arthroplasty have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991 and Supp. 1997); 38 C.F.R. §§ 4.7,
4.71a, Diagnostic Codes 5055, 5256, 5260, 5261 (1997).
2. The criteria for an increased rating of 20 percent for
right lower back spasm have been met. 38 U.S.C.A. §§ 1155,
5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5292, 5295
(1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Criteria
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. See Francisco v.
Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (1997).
Disability evaluations are determined by the application of
the VA Schedule for Rating Disabilities (Ratings Schedule),
38 C.F.R. Part 4. The percentage ratings contained in the
Ratings Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1
(1997).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. 38 C.F.R. § 4.7 (1997).
The evaluation of the same disability under various diagnoses
is to be avoided. Disability from injuries to the muscles,
nerves, and joints of an extremity may overlap to a great
extent, so that special rules are included in the appropriate
bodily system for their evaluation. Dyspnea, tachycardia,
nervousness, fatigability, etc., may result from many causes;
some may be service connected, others, not. Both the use of
manifestations not resulting from service-connected disease
or injury in establishing the service-connected evaluation,
and the evaluation of the same manifestation under different
diagnoses are to be avoided. 38 C.F.R. § 4.14 (1997).
The United States Court of Veterans Appeals (Court) has held
that diagnostic codes predicated on limitation of motion do
not prohibit consideration of a higher rating based on
functional loss due to pain on use or due to flare-ups under
38 C.F.R. §§ 4.40, 4.45 and 4.59. See Johnson v. Brown, 9
Vet. App. 7 (1997) and DeLuca v. Brown, 8 Vet. App. 202, 206
(1995).
Right knee disability
Factual Background
Service medical records show that the veteran underwent
removal of torn cartilage of the right knee during active
service. In April 1952, the veteran received a revised
physical profile because of chronic pain and swelling in the
right knee.
VA examination in July 1988 found degenerative arthritis of
the right knee and status post lateral meniscectomy. The
veteran reported intermittent pain and swelling since active
service, and aggravation of the right knee disorder in a job-
related motor vehicle accident.
Private medical examination in September 1988 revealed
swelling laterally about the right knee. The diagnoses
included osteoarthritis of the right knee with degenerative
cyst. The physician stated that it appeared the veteran’s
right knee disability was largely due to the injury sustained
in his most recent accident.
During VA examination in September 1989, the veteran
complained of unbearable pain and occasional instability.
The diagnosis was right knee degenerative changes,
exacerbated by recent motor vehicle accident.
VA hospital records dated in November 1992 note that the
veteran underwent right knee arthroscopy and debridement.
The examiner reported the veteran had experienced progressive
right knee pain with a palpable click, occasional locking and
recurrent effusion. Post-operative course was unremarkable.
In March 1993, the veteran underwent right total knee
arthroplasty. An April 1993 hospital summary noted the
procedure was performed without complications and the veteran
was discharged in good condition.
VA outpatient treatment records dated in June 1993 note that
the veteran reported no problems and good function, with
minimum discomfort. The veteran denied falls, trauma or
persistent significant swelling. He stated that he had been
walking without crutches, and that he had noticed increased
pain and snapping and popping. The examiner noted the range
of motion was from 0 to 110 degrees. There was effusion and
tenderness, but no significant laxity. X-rays revealed no
changes and good position of all components. The examiner
noted the veteran was doing well overall.
In July 1993, the veteran reported that he had decreased pain
with reduced walking and knee stress. He reported his only
compliant was pain while kneeling when he fished. The
examiner noted there was no laxity, effusion, tenderness or
crepitus. Range of motion was from 0 to 120 degrees. The
veteran’s gait was without antalgic component. The diagnosis
was status post total knee arthroplasty, doing better with
decreased activities.
A November 1993 clinical note shows that the veteran was
doing very well, that he reported no new problems, was able
to walk at least 4 to 6 blocks without pain and was able to
climb stairs without difficulty. He also reported no
difficulty sleeping and minimal pain relief medication use.
The veteran denied pain with rest, effusion, knee giving out
or use of a cane. The examiner noted the right knee was
nontender, with no crepitus, laxity or effusion. Range of
motion was from 0 to 115 degrees. The diagnosis was status
post total knee arthroplasty, doing well.
During VA examination in August 1994, the veteran reported no
knee pain, but that he experienced daily pain in the muscle
above and below the knee. The examiner noted there was no
deformity, swelling, subluxation or lateral instability in
the right knee. Range of motion was flexion to 100 degrees
and extension limited to 15 degrees. The diagnosis was
status post right knee arthroplasty.
VA outpatient treatment records dated in June 1995 show that
the veteran complained of exercise like pain in the knee
which was better when the knee was in extension. The
examiner noted the range of motion was from 5 to 115 degrees.
There was no instability, effusion or palpable cyst. X-ray
examination revealed bilateral Baker’s cysts. The examiner
noted the veteran was symptomatic to the right. Additional
treatment was deferred.
In September 1995, the veteran complained of increased pain,
decreased walking, and an inability to straighten the leg.
The veteran reported he had stopped walking 1 to 2 miles a
day, and that he had experienced swelling, pain and some
stiffness with prolonged sitting. The examiner noted there
was no effusion, crepitus or catching. Range of motion was
from 5 to 115 degrees. There was no palpable Baker’s cyst or
specific tenderness. The diagnosis was status post total
knee arthroplasty, intermittently bothersome with increased
activity.
During VA examination in November 1995, the veteran
complained of numbness in the right knee area with flexing
past 90 degrees over the previous 12 months, occasional
shooting pains into the tibia area, occasional swelling and
occasional aching on twisting the knee or when pressure was
applied along the joint line. He denied pain with weight
bearing.
The examiner noted range of motion from 12 to 110 degrees.
There was no effusion, erythema, warmth or lateral or medial
instability. There was a slight Drawer sign. Quadriceps
muscles were equal. There was a Baker’s cyst which was
obvious when the veteran stood erect. There was no
tenderness or inflammation in the popliteal fossa. Sensation
was normal about the knee. The diagnosis was degenerative
joint disease with history of total knee replacement in March
1993 and secondary Baker’s cyst. The examiner noted the
veteran’s symptoms were most likely attributable to a
symptomatic Baker’s cyst.
Private medical opinion dated in January 1996 noted that the
veteran had good relief from pain, but that over one and a
half years he had experienced intermittent accumulations of
fluid in the back of the knee and pain after walking more
than 2 to 3 blocks. An examination report shows the veteran
had excellent range of motion of the prosthetic knee from 0
to 120 degrees, with some palpable crepitus and mild soft
tissue swelling to the lateral side, but without fluid
accumulation, irritation, erythema, drainage or any sign of
infection. The diagnosis was right knee pain 2 years post
knee arthroplasty. The opinion noted that the knee was
solidly in place, and recommended continued use of brace,
cane and limit of activities.
A private medical opinion dated in February 1996 noted that
the veteran had complained of increasing problems since his
right total knee surgery in March 1993. The veteran reported
progressive weakness in the leg, with periodic muscle pain
and swelling. He reported he used a brace regularly, and
occasionally used a cane. He reported swelling after walking
4 to 5 blocks. He denied locking, catching or giving way.
The physician noted the veteran walked with a slight limp to
the right, that he was able to walk on heels and toes with
difficulty and could only perform ¼ of a squat. Range of
motion studies of the right knee revealed extension limited
to 20 degrees, and flexion for 120 degrees. There was no
gross fluid, crepitus or medial lateral instability. There
was a minimal anterior Drawer sign. There was tenderness in
the hamstrings bilaterally, and obvious atrophy above the
knee. The thigh measurements were 19 left and 18 ¼ right.
The diagnoses included post operative right total knee
replacement.
The physician noted that although the veteran’s knee pain was
not “severe” as before the operation, that he experienced
disabling discomfort which markedly restricted his
activities, much more that most total knee operations.
During VA examination in April 1996, the veteran complained
of increasing knee pain 24 hours a day, with progressive
daily swelling and stiffness, but no giving way or locking.
He stated he avoided standing or walking more than 3 to 4
blocks, and that he used a brace all the time. The examiner
noted the veteran walked with a rather mechanical-like gait.
The right knee revealed tenderness along the lateral aspect,
with no effusion or erythema. Range of motion was from 20 to
95 degrees. There was slight anterior laxity, but no lateral
instability. The diagnoses included degenerative joint
disease, right knee, status post total knee replacement with
chronic pain and loss of range of motion.
VA examination in March 1997 found status post right knee
arthroplasty in March 1993, with continuing pain and a
moderate loss of motion. The veteran complained of pain,
swelling, numbness and weakness in the knee, but no
collapsing or locking.
The examiner noted the veteran had some limping to the right.
Reflexes were absent to the knees and ankles bilaterally.
Extensor muscles and sensation were normal in the lower
extremities. Range of motion was from 0 to 110 degrees, with
moderate pain. The right quadriceps revealed moderate disuse
atrophy. There was a slight increase in joint fluid, but no
swelling. The ligaments were satisfactory. There was mild
tenderness to the medial joint line, but the lateral joint
line was negative.
The examiner noted that the discrepancy in range of motion
from the April 1996 examination findings may reflect
improvement in motion with further healing after surgery.
The examiner also noted that the veteran had a definite
impairment in the right knee, that flare-up of symptoms
occurred at least twice a week and that loss of motion due to
pain represented a 20 percent decrease in flexion.
Criteria
The current version of the Rating Schedule provides
compensable ratings for prosthetic replacement of a knee
joint, for 1 year following implantation of prosthesis (100
percent); thereafter, with chronic residuals consisting of
severe painful motion or weakness in the affected extremity
(60 percent); with intermediate degrees of residual weakness,
pain or limitation of motion rate by analogy to diagnostic
codes 5256, 5261, or 5262; or a minimum rating (30 percent).
38 C.F.R. § 4.71a, Diagnostic Code 5055 (1997).
The Rating Schedule provides compensable ratings for
ankylosis of the knee when it is extremely unfavorable, in
flexion at an angle of 45 degrees or more (60 percent); in
flexion between 20 degrees and 45 degrees (50 percent); in
flexion between 10 degrees and 20 degrees (40 percent); and
favorable angle in full extension, or in slight flexion
between 0 degrees and 10 degrees (30 percent). 38 C.F.R.
§ 4.71a, Diagnostic Code 5256 (1997).
The Rating Schedule provides disability ratings for
limitation of flexion of the leg when flexion is limited to
15 degrees (30 percent); flexion limited to 30 degrees (20
percent); flexion limited to 45 degrees (10 percent); and
flexion limited to 60 degrees (0 percent). 38 C.F.R.
§ 4.71a, Diagnostic Code 5260 (1997).
The Rating Schedule provides disability ratings for
limitation of extension of the leg when extension is limited
to 45 degrees (50 percent); extension limited to 30 degrees
(40 percent); extension limited to 20 degrees (30 percent);
extension limited to 15 degrees (20 percent); extension
limited to 10 degrees (10 percent); and extension limited to
5 degrees (0 percent). 38 C.F.R. § 4.71a, Diagnostic Code
5261 (1997).
Analysis
Initially, the Board notes that the veteran’s increased
rating claim is found to be well-grounded under 38 U.S.C.A.
§ 5107(a). That is, he has presented a claim which is
plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In
general, an allegation of increased disability is sufficient
to establish a well-grounded claim seeking an increased
rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The
Board is also satisfied that all facts relevant to the
increased rating claims have been properly developed, and
that no further assistance is required in order to satisfy
the duty to assist mandated by 38 U.S.C.A. § 5107(a).
The record reflects that the veteran was awarded a 100
percent disability rating for 1 year following prosthetic
replacement of the right knee, a 30 percent schedular rating
was assigned to follow the temporary total rating. The
veteran claims that an increased rating is warranted because
of pain, weakness and greater degree of impairment.
The Rating Schedule provides that for knee replacement with
chronic residuals consisting of severe painful motion or
weakness in the affected extremity a 60 percent rating is
warranted; intermediate degrees of residual weakness, pain or
limitation of motion are to be rated by analogy, but that a
minimum 30 percent rating is warranted. 38 C.F.R. § 4.71a,
Diagnostic Code 5055. The Board finds that the medical
evidence of record does not demonstrate severe painful motion
or severe weakness that would warrant a 60 percent disability
rating. The veteran’s level of disability was described as
moderate and definite by VA examiners, and the veteran’s
private physician stated that his knee pain was not presently
severe.
An increased rating is not warranted unless the veteran’s
impairment demonstrates a greater disability under analogous
ratings criteria. The Board notes that the veteran’s right
knee is not shown to be ankylosed and that a 30 percent
disability rating is the maximum schedular ratings for
limitation of flexion; therefore, increased ratings under
diagnostic codes 5256 and 5260 are not possible. 38 C.F.R.
§ 4.71a, Diagnostic Codes 5256, 5260.
Higher disability ratings for the veteran’s limitation of
extension of the right leg are possible if extension is
limited to 45 degrees (50 percent); if extension is limited
to 30 degrees (40 percent); or if extension is limited to 20
degrees (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code
5261. In addition, the veteran’s limitation of motion
disability warrants consideration of a higher rating based on
functional loss due to pain on use or due to flare-ups under
38 C.F.R. §§ 4.40, 4.45 and 4.59. See Johnson, 9 Vet. App.
7 ; DeLuca, 8 Vet. App. at 206.
The most recent VA examination in March 1997 found that the
range of motion of extension of the veteran’s knee was to 0
degrees, which reflects a 0 percent disability rating under
diagnostic code 5261. However, earlier VA examinations
revealed limitation of extension to 15 degrees in August
1994, to 12 degrees in November 1995 and to 20 degrees in
April 1996. Private medical examinations revealed no
limitation of extension in January 1996 and limitation of
extension to 20 degrees in February 1996. The VA examiner in
November 1995 noted that the increase in symptomatology was
attributable to the symptomatic Baker’s cyst.
Based upon the veteran’s complete medical history since his
total knee replacement in March 1993, the Board finds that
the medical findings of limitation of extension in 1995 and
1996 were due to a Baker’s cyst and do not demonstrate a
permanent limitation of extension. The veteran’s permanent
limitation of extension, including consideration for
functional loss due to pain on use or flare-ups, does not
warrant a rating higher than 30 percent. See 38 C.F.R.
§ 4.71a, Diagnostic Code 5261.
Right low back spasm
Factual Background
During VA examination in July 1988, the veteran reported neck
and back injuries as a result of a job-related motor vehicle
accident. The examiner noted some straightening of the
lumbar lordosis, and full flexion of the lumbar spine.
VA outpatient treatment records dated in November 1993 show
that the veteran complained of continued low back pain. He
reported the original injury was incurred 5 years earlier in
a motor vehicle accident. In January 1994, the veteran
complained of low back pain which had increased in severity
since his total knee replacement. The diagnoses included
lumbar muscle spasms and myofascial pain with gait
abnormalities. In February 1994, the diagnosis was chronic
muscle pain and spasm. A May 1994 report shows soft tissue
damage and degenerative joint disease to the lumbar spine.
VA examination in August 1994 found back muscle spasm
secondary to right knee disability. The examiner noted the
veteran had back muscle spasms due to stress as a result of
the right knee disorder.
VA outpatient treatment records dated in January 1995 show
that the veteran complained of right-sided low back pain. In
June 1995, the veteran complained of a history of low back
pain over the previous 2 to 3 months.
Private medical opinion in February 1996 included a diagnosis
of advanced osteoarthritis of the lumbar spine. The veteran
reported that his back began bothering him about one year
after his knee operation, which he related to limping. He
stated that the pain was constant. The physician noted range
of motion studies revealed forward flexion to 40 degrees,
extension to 10 degrees and less than 10 degrees of right and
left lateral flexion. Discomfort was located without spasm
in the area of the right sacroiliac joint. There was poor
back musculature. X-rays revealed a very advanced degree of
spondylosis with bridging, narrowing and a facet
degeneration.
VA examination in April 1996 found chronic lumbosacral
strain, superimposed on fairly advanced degenerative joint
disease of the spine with loss of range of motion and
deformity. The veteran reported increasing back pain
radiating into the right leg, chronic stiffness and numbness
in the right foot.
The examiner noted the veteran walked with a rather
mechanical-like gait, stood slightly stooped forward and had
an obvious increase in his dorsal kyphosis. There was a
flattening of the lordotic curve, and point tenderness in the
paraspinal musculature at L2-3. Range of motion studies
revealed forward flexion to 30 degrees, hyperextension to 10
degrees, lateral bending to 30 degrees, bilaterally, and
rotation to 20 degrees, bilaterally. The examiner noted the
veteran was able to stand on his heels and toes. Muscle
masses and reflexes were equal, and sensation was intact.
The examiner stated that the veteran’s back disability was
most likely not related to his knee; however, his gait
problems played some role in the muscular status of his back.
During VA examination in March 1997, the veteran complained
of chronic, bothersome pain, especially in the left
iliolumbar area, with some feelings of weakness. The back
pain went down into the left upper buttock. The examiner
noted that percussion of the flexed spine was not painful.
Range of motion studies revealed flexion to 70 degrees,
extension to 10 degrees, rotation to 20 degrees, bilaterally,
and lateral bending to 15 degrees, bilaterally.
The alignment of the spine was satisfactory, and the entire
spine was nontender. The diagnoses included chronic muscular
strain superimposed on degenerative instability. The
examiner noted that the veteran’s back pain represented a 10
degree decrease in range of motion, and that the decreased
function and pain related the veteran’s right knee disability
represented 40 percent of his present back disability.
Criteria
The Rating Schedule provides a compensable rating for
lumbosacral strain when there is evidence of characteristic
pain on motion (10 percent), muscle spasm on extreme forward
bending with loss of lateral spine motion, unilateral, in a
standing position (20 percent), or listing of the whole spine
to the opposite side with a positive Goldwaite’s sign, marked
limitation of forward bending in a standing position, loss of
lateral motion with osteoarthritic changes, or narrowing or
irregularity of joint space, or some of the above with
abnormal mobility on forced motion (40 percent). See
38 C.F.R. § 4.71a, Diagnostic Code 5295 (1997).
The Rating Schedule also provides compensable ratings for
limitation of motion of the lumbar spine when that limitation
is slight (10 percent), moderate (20 percent), or severe (40
percent). 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1997).
Analysis
Initially, the Board notes that the veteran’s increased
rating claim is found to be well-grounded under 38 U.S.C.A.
§ 5107(a). That is, he has presented a claim which is
plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In
general, an allegation of increased disability is sufficient
to establish a well-grounded claim seeking an increased
rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The
Board is also satisfied that all facts relevant to the
increased rating claims have been properly developed, and
that no further assistance is required in order to satisfy
the duty to assist mandated by 38 U.S.C.A. § 5107(a).
The record reflects that the veteran’s initial back injury
was incurred in a job-related motor vehicle accident in 1988,
which also aggravated a right knee disorder incurred during
active service. VA examination in September 1988 included
diagnoses of osteoarthritis and lumbar strain, which were
aggravated by motor vehicle accident. Subsequent medical
opinions found the veteran’s service-connected right knee
disability contributed to his low back pain. In March 1997,
the examiner stated that 40 percent of the veteran’s low back
disorder was attributable to his service-connected disability
. See 38 C.F.R. § 4.14.
The Board finds that in order for the veteran to receive a
rating higher than the current 10 percent evaluation, his
right lower back spasms must be productive of moderate
limitation of motion of the lumbar spine for a 20 percent
evaluation under diagnostic code 5292, or muscle spasm on
extreme forward bending with loss of lateral spine motion,
unilateral in the standing position, under diagnostic code
5295. See 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295.
An evaluation of the evidentiary record discloses that the
appellant’s right lower back spasm is not productive of
muscle spasm on extreme forward bending with loss of lateral
spine motion, unilateral, in a standing position, and
consequently the criteria for the next higher evaluation of
20 percent under diagnostic code 5295 for lumbosacral strain
have not been satisfied.
However, an analysis of the most recently dated medical
evidence associated with the record discloses that range of
motion studies of the lumbar spine have been inconsistent and
have raised a question as to the true limitation of motion.
In this regard, the Board notes that when most recently
examined by VA in March 1997, the examiner opined that the
veteran’s back pain represented a 10 degree decrease in
range of motion. At that time the veteran’s forward flexion
was to 70 degrees, extension was to 10 degrees, bilateral
rotation was to 20 degrees, and bilateral bending was to 15
degrees.
Previous examination in April 1996 disclosed forward flexion
to 30 degrees, hyperextension to 10 degrees, bilateral
bending to 30 degrees, and bilateral rotation to 20 degrees.
When privately examined in February 1996, the veteran
demonstrated forward flexion to 40 degrees, extension to 10
degrees, and less than 10 degrees of bilateral lateral
flexion.
As the Board noted earlier, a 10 percent evaluation may be
assigned for slight limitation of motion of the lumbar spine
under diagnostic code 5292. The next higher evaluation of 20
percent requires moderate limitation of motion. The Board’s
analysis of the most recent VA and private examination range
of motion studies permits the conclusion that a question has
been raised as to the extent of limitation of motion due to
right lower back spasm. 38 C.F.R. § 4.7. The record shows
that the veteran has more than slight limitation of lumbar
spine motion and that such limitation of motion more closely
approximates disablement contemplated in the next higher
evaluation of 20 under diagnostic code 5292. Severe
limitation of motion of the lumbar spine due to right lower
back spasm is not shown by the evidence of record.
The Board notes that the veteran’s low back disability also
requires consideration under the provisions of 38 C.F.R.
§§ 4.40, 4.45 and 4.59. However, the veteran does not
exhibit weakness, deformity, atrophy, fasciculation, pain on
movement, or other signs of disability sufficient to warrant
a severe disability rating for limitation of motion of the
lumbar spine. The March 1997 examiner noted that the
veteran’s decrease in range of motion due to pain was 10
percent. Thus, the Board finds that the veteran’s lumbar
spine disability, including consideration of 38 C.F.R.
§§ 4.40, 4.45 or 4.59, does not warrant a disability rating
sufficient to provide a rating in excess of 20 percent based
upon the amount of impairment attributable to the service-
connected disability.
For the foregoing reasons, the Board concludes that the
record supports a grant of entitlement to an increased
evaluation of not more than 20 percent for right lower back
spasm with application of pertinent governing schedular
criteria.
As shown above, the Board has considered all potentially
applicable provisions of 38 C.F.R. Parts 3 and 4, whether or
not they have been raised by the veteran or his
representative, as required by Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). In this case, the Board finds no provision
upon which to assign higher ratings.
When all the evidence is assembled, the Secretary, is then
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a preponderance of the
evidence is against the claim, in which case the claim is
denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
The Board finds the preponderance of the evidence is against
the claims for increased ratings.
ORDER
Entitlement to an increased rating for a right knee disorder
is denied.
Entitlement to an increased rating of 20 percent for right
lower back spasm is granted, subject to governing criteria
applicable to the payment of monetary benefit.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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